Defamation and Disparagement Archives

“If I write a book about my former employer, can they sue me if it’s all true?”

Published on July 23rd, 2013 by Alan L Sklover

Question: My question is about defamation. I worked in Pennsylvania and my employer retaliated against me, created a hostile workplace, and basically forced me to quit. Now I’m writing a book to tell all.

Could the company sue me even if it’s all true?

Marcia
Philadelphia, Pennsylvania

Answer: Dear Marcia: It is literally amazing how many people either want to write a book about their employment experiences, or are in the process of doing so. The words I often hear is “No one will believe this, but I’m going to say it anyway.” It’s for that reason that I believe my answer to your question may be of interest to, and helpful for, so many people. 

1. “Defamation” requires that what you say or write is untrue; so, truth is a complete defense to defamation. The very definition of defamation is “a written or spoken statement of fact that is false and injurious to someone’s reputation that is communicated to another person.” It’s that simple: if what you write is true, it is not defamation. In fact, publishers often employ “fact-checkers” to make sure that statements of fact in books they publish are, indeed, all true.  

2. But don’t forget: the company and/or its employees might disagree with you about what is true, and what is false, and so might still sue you. You might truly believe that your employer engaged in retaliation, hostility and bullying. You might even cite examples of “Mr. Smith” having done bad things that were witnessed by 10 of your co-workers. That said, the company and Mr. Smith might disagree with your contention that what you wrote is true, and your 10 witnesses might conveniently “forget” all they witnessed in order to keep their jobs. These things sometimes do happen, and ought to be considered seriously before you work quite hard on the book you have in mind.  

3. Your book might also violate a confidentiality clause you might have agreed to. It is quite common for employees to be required to agree to remain strictly confidential about everything they learn or experience while working for an employer. These agreements can be found in (a) offer letters, (b) employment contracts, (c) stock option agreements, (d) bonus award agreements, (e) and employee handbooks. If you agreed to abide by one or more such agreements that require confidentiality during and after your employment, your book might just violate that agreement, and result in a lawsuit against you on that basis.  

4. Without you realizing it, your book might also divulge valuable “trade secrets” and/or “proprietary information” of your employer, which could get you sued. Though it might sound silly, let’s imagine this example: let’s say you worked in a cupcake factory, and you saw your colleagues put feathers mixed with sawdust into the cupcakes to make them fluffier. (a) If it was true, it could not be defamation, as truth is a total defense to defamation. (b) If you did not sign a confidentiality agreement or an agreement with a confidentiality clause in it, you could not be violating a confidentiality obligation. (c) But – and this is very important – the addition of feather and saw dust into the cupcakes as a “fluffing” agent might be a secret recipe that makes the cupcakes the best seller in the world. 

You might say, “Feathers and sawdust can’t be a secret recipe . . . that is disgusting.” Well, Marcia, they are both “organic” materials, and I will bet that some cupcakes have far more disgusting things in them! The point is that you need to consider whether anything you write about is a valuable secret, some process, practice or business formula that gives your employer an edge over its competitors. Losing that could hurt your employer, and thus make it entirely appropriate for them to sue you.   €  

With all this said, I totally understand and appreciate your desire to “tell all” and to try to stop your former employers from acting toward others the way they have acted against you. I applaud the notion, but I also urge caution, because that is, more than anything, an attorney’s job: to (a) identify, (b) assess, and (c) help reduce risks in life. I hope these thoughts do just that for you, and for others with the same question in their minds.  

My Best,
Al Sklover 

P.S.: Don’t forget: we offer Model Letters, Memos, Checklists and Form Agreements for almost every workplace issue, concern and problem that requires your smart navigating and negotiating. They show you “What to Say, How to Say It.™” Want to see our Entire List? Just [click here.] Delivered by Email – Instantly! 

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2013 Alan L. Sklover, All Rights Reserved.

What is “tortious interference with prospective business relations?”

Published on May 8th, 2012 by Alan L Sklover

Question: Hi Alan I’ve been working at a job for the past 8 months that has been unpleasant, to say the least. I have a bad rapport with the boss and some other employees.

Recently a vendor of ours had a job opening which I applied for (after hours) and got. For the last 5 weeks I have been working both my regular job as well as this new job with the vendor on my days off. This past week I quit my first job entirely so that I can work for the vendor full time. Now my previous boss is contacting (and screaming at!) my new boss, telling him that he stole me away, that I am not a loyal employee, that he should fire me etc. He is also sending me insulting emails, saying that my new job will never last, that I made a huge mistake, that I’ll be crawling back to him etc. A real pleasant man, as you can tell.

My question is what can I do about this. Can/should I send him a cease and desist? How can I keep him from harassing me and my new employer? If my new employer takes heed and drops me, or fires me because he doesn’t want to deal with the drama of the old boss, can I sue the old boss for libel? My goal here is to keep the new job and silence the old boss. However, if I lose the job or he continues to cause me harm, something else will have to be done. Please help!! Thanks.

Matt
Newport Beach, California

Answer: Dear Matt: Though what is happening to you is extreme in its nature and intensity, I must admit that I have seen poor former-employer behavior such as this many times. In the law we refer to it as “tortious interference with prospective business relations” or similar words. Here are my thoughts in response to your questions:   

1. In almost all states, an “outsider” who interferes with another person’s business relations – including employment relations – can be sued for any resulting damages. The area of law that deals with injuries by one person to another is called “tort law.” The most familiar kinds of tort law are personal injuries, car accident and medical malpractice. Some tort injuries are caused by negligence – such as careless driving – and some tort injuries are caused by intentional conduct – such as a punch in the nose.

The law in almost all states recognizes and will permit a lawsuit for injuries to one’s business relations if the person who caused the injury had no involvement in the business relation, but only sought to interfere with it. We call that either “tortious interference with business relations” or “tortious interference with contractual relations” if the relation has a contract as part of it.

2. In most states, including yours, there need to be five things present (lawyers call them “elements”) in order to successfully sue someone for tortious interference. The five necessary elements of a successful claim of tortious interference: (1) an economic or financial relation of the plaintiff (the person suing); (2) knowledge by the defendant (the person being sued) of that relationship; (3) an intentional act by the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) damages to the plaintiff (person suing) caused by the disruption of the relationship.

While the law varies a bit from state to state, these five elements are quite common.

3. By all means, you should send your former employer a “Cease and Desist” letter.” There are four important reasons to do so: (a) first, it just might bring your crazy ex-employer to his senses; (b) second, to make a record of what he is doing and that you object to what he is doing; (c) third, to let him know that he will be held accountable for any damages he may cause to your new employment relation; and (d) fourth, to serve as persuasive proof, just in case you do end up suing your former employer, of the fact that he knew he was damaging you, and went ahead anyway.

We offer a Model “Cease and Desist Letter” to Disruptive Former Employers, just like yours, on the Model Letters section of our blog. To obtain a copy, just [click here.]

4. Sending a Cease and Desist Letter might also show your new employer that you attend to problems in a professional, direct and honest way. A new employment relation, like any new relation, is a delicate flower. It will bloom if you nurture it, and protect it from harsh elements. Many people think that “It always takes two to tango,” until, that is, they are mugged. This can help show your new employer that you are not at all a cause of this crazy behavior to which the two of you are being subjected. 

Matt, if you should decide to hire an attorney to assist you, you can obtain a list of at least five experienced employment attorneys in the Los Angeles area. To obtain a list, just [click here.]

Thanks for writing in, Matt. I sure hope you get away from that crazy ex-boss of yours.   

Best,
Al Sklover

P.S.: Our Model Letters help people stand up for themselves at work. For a friend facing Job Loss, Severance, Resignation, Bully Boss, or Performance Improvement Plan, they are a “Helping Hand Gift for a Friend in Need. Just [click here.] 

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.

“What can an ex-employer say about an ex-employee?”

Published on July 5th, 2011 by Alan L Sklover

QuestionMy boyfriend was let go from his job. The only thing he was told was that he was being let go, though it should be noted that when he was hired, he was told the work may be temporary.

He is currently going through a divorce, and his wife went to his ex-employer and asked for a letter stating why he was fired. The company – which her step-father works for – provided her with a letter listing numerous reasons why he was “fired.”

My boyfriend was never provided with a copy of that letter. His wife then used this letter in court, and stated in the court that she went and asked for the letter, and was given it.

Is this legal? Can he take action against his ex-employer?  

 Kathy
(City, State Not Provided)

Answer: Dear Kathryn:

What happened to your boyfriend illustrates important issues about the relation between former employees and their former employers:     

1. After the employment relation ends, the former employer and former employee are, for the most part, essentially “strangers.”  With very few exceptions, former employees and former employers have no relation to each other, almost as if strangers, unless they have signed an agreement obligating themselves further. There are very few exceptions to that.

2. Thus, neither the former employee nor the former employer has any legal expectation of privacy, confidentiality or secrecy, unless they have agreed to that. Thus, both the employer and the employee are free to tell other people anything they want regarding the other. That said, again, just like strangers, if one makes a false and damaging statement about the other, the “victim” of the false statement can sue the 0ne who spoke or wrote falsely.   

 3. The law does prohibit defamation, but that requires the utterance of a false statement. Defamation is a very narrow concept. It requires (a) the public dissemination, (b) of a false statement, (c) that is damaging, and (d) is outside of several different exceptions that the law permits. For example, in a courtroom trial, no matter what a witness says – no matter how false, no matter how widely it is publicized, and no matter how damaging, the law says “This is protected, and is outside of what we call defamation.” Another exception are expressions of opinion, because they are not statements of “fact.” There are many other such exceptions. It is very possible that the letter written by your boyfriend’s former employer were true, or were protected opinion, or fit into some other exception.  

4. So the former employer is free to make true statements (oral or written), and so is the former employee. My  concern is that the reasons in the letter that went to Court may have been true. As noted above, both former employees and former employers are free to make true statements, regardless of the effect of those statements.  

5. Incidentally, the fact that your husband’s wife’s step-father works for the company should make the letter’s statement suspect, perhaps even without any credibility. One thing I do hasten to point out: I would expect that your boyfriend’s lawyer in court would remind the Judge that his wife’s father works for the former employer, and thus it makes the letter somewhat suspect. In fact, the letter would seem to some to be without any credibility whatsoever.

So, for these reasons, from what you have written, I think what the  former employer did was “legal,” and I don’t think your boyfriend has any legal recourse against his former employer.  Sorry for the bad news.

Thanks, in any case, for writing in, and I do hope you’ve found this information helpful. We’d very much appreciate it if you would use our advertisers – by clicking to them on our blogsite – and in that way help us keep going with what we do.

Best,
Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.

“How can I stop interference with my employment?”

Published on March 30th, 2011 by Alan L Sklover

Question: My current employer just received a scathing email from a former client of mine absolutely bashing my reputation terribly. The statements are all false and they are really bad.

We are currently pursuing a five million dollar contract with the State of Arizona. In the letter my former client stated that he contacted one of the state senators we are dealing with, with the same things about me.

What should I do? 

Michael
Saint David, Arizona

      
Answer: Dear Michael:

Without a doubt, you have a right to protect yourself from what seems to be defamation and interference with your employment/business relations. Here’s what I suggest you do:    

a. First, you should demand a retraction of any false statements about you that serve to harm your reputation. In a letter sent by Federal Express, or Certified Mail, Return Receipt Requested, you should insist that a retraction of the false statements be sent to your employer. A false statement of fact sent to another person that serves to harm your reputation is the definition of defamation. Under Arizona law, you have every right to sue your former client for doing what he or she is doing. By sending him or her a letter demanding a retraction you (1) might get the retraction, and (2) will have a stronger case if you do, in fact, have to sue. 

Someone got a grudge, and bad-mouthing or sabotaging you? Get Our Model Memo Expressing Concern about Post-Employment Bad-Mouthing. It’s both respectful and effective. Shows “What to Say and How to Say It.”™ Just [click here.] Delivered by Email – Instantly!

b. Second, your letter should also demand that the writer “cease and desist” from interfering with your employment and the prospective business relation you are pursuing. In most states, including Arizona, the law permits a person to sue another person who interferes in bad faith with either contractual relations or “business expectancy.” (This violation of your legal rights is referred to as “tortious interference.”) By sending your former client a letter insisting he or she “cease and desist” from interfering with your efforts to succeed in getting the five million dollar contract, you (1) might get him or her to stop, or (2) if he or she causes you to lose out on that “business expectancy,” you may have a stronger legal case against him or her.

Former Employer Interfering, Disrupting, Sabotaging? Use our Model Letter – “Cease & Desist – Former Employer Interference.” Contains formal warning and demand to stop. Shows you “What to Say, and How to Say It.” To get your copy, just [click here.] Delivered to your printer in minutes.

c. Third, and finally, it sounds like a consultation with an attorney might be worthwhile. I don’t like to tell everyone who writes in to use the services of an attorney. However, the facts you present are very compelling, urgent, and extreme. What is at stake is no less than (a) your employment, (b) your reputation, and (c) five million dollars. Ouch!! You really do need to get your former client to stop, and to stop quickly. I encourage you to ask around for a referral to a tough attorney who might be able to do what needs to be done, and to do it soon.

What you describe indicates that your former client is wildly ignorant of the bounds of proper behavior, and will not likely stop unless forced to do so. I encourage you – strongly – take aggressive and prompt action. It takes a lifetime to build a reputation, but only a moment to lose it. Don’t hesitate. And best of luck to you in your efforts.

Best,
Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.

Sklover Reputation Repair™ – Protect Your Career From Online Risk

Published on November 17th, 2010 by Alan L Sklover

“Glass, china and a reputation
are easily cracked and never mended.” 
 
– Benjamin Franklin

ACTUAL CASE HISTORY*: Over a 25-year period Megan, 43, had climbed her way up the “fashion ladder” from department store salesgirl to Visual Director of one of the world’s most famous fashion houses. Somehow, along the way she managed to pick up a Masters Degree in Design, several prestigious fashion design awards, and frequent invitations to speak at fashion expos.

Her gradual climb, though, took a bad step in 2009 when – for some unknown reason – an anonymous blogger wrote that she thought Megan had incorporated ideas and images from other Visual Directors into her own visual displays. The allegations were 100% untrue. Nonetheless, the world of visual fashion display was abuzz about these blog postings. Megan was crestfallen.

Things only got worse. First, in Megan’s defense, several of her good friends posted blog articles of their own defending her, which seemed only to further spread the “poison” all around the internet. Second, though time passed, Megan noted that, when she put her own name into Google and other search engines, she seemed to find more and more mentions of this allegation. Then she received a telephone call notifying her that an invitation to speak at a fashion design dinner had been withdrawn for no apparent reason. Finally, she received an email from an executive recruiter she knew asking her if she knew what was “all over the internet” about her.

Megan requested our “reputation repair” help in addressing the situation, a situation we are seeing more and more of our clients experience. We have learned over time that there are steps a person can take to decrease the chances of such a thing happening, and to take if something does happen, despite precautions. We helped Megan clear up the negative references, and have now expanded our law firm practice to include these “reputation repair” services. 

LESSON TO LEARN: In this “internet era” it is all too easy to lose a good reputation. Everyone who is employed or wants to be employed needs to both be vigilant about their reputations, and aggressive in repairing their reputations if damage takes place. Entire careers can be lost in a moment in this way.

Because so many of our clients have experienced the loss of their good reputations, and have asked us to assist in repairing them, we have learned – and are learning more and more each day  – about what can be done in terms of “reputation repair.”  

WHAT YOU CAN DO: Here are ten (10) steps you can take to both (a) monitor and (b) repair, your own online reputation so as to ensure that your employment and career remain undamaged:

Read the rest of this blog post »


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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